OVER A DIVIDING FENCE.

Poverty Bay Herald, Volume XLV, Issue 14712, 18 September 1918, Page 8

OVER A DIVIDING FENCE.

The rase I. .1. Roberts pJr Jlurnard) v. Andrew J. Picken (.Mr Coleinan) was t.-untinued Yesterday allornoon, thu Court extending the sittiiig till 10 p.m. m order to complete- the case, which was found impossible owing to the large number of witnesses.

Albert Ernest Harris, sheepfarmer, said he had a. property adjoining that <>J plaintiff at Wiiarcivopae. Ho had seen the fence line m. question and oonwdered it was a. good one- The re- were one or two places where the fence was ;ui inch or so short. The fence he. considered was a. good give-and-take fence line. Witness -had about 300 acres felled but was unable to burn it, as the past two seasons had not been favorable. :

Henry Uren Richardson, sheepfarmer, residing- at Wharekopae,- said he had been tliere for 11 years, and his property bordered on a- portion of plaintift'.s property. To the best of witness' be-lief the- new line was erected on the old one. He looked at it from a sheepfarmer's point of view and found it suitable to the lay of the ground. Ho considered the fence generally was ftock-proof, and even where the wilier berry posts were it was suitable for four yeaas or more. TJie clearing appeared to witness to be very well done. A competent bushinan. would do a great deal more because he would bo under contract and "would go for his life." Percy J. Taylor, station manager, who is overseeing four stations under the Cooper paitnersiiip, deposed that lie had inspected the fence and considered it sheep-proof, substantial, and with plenty of material m it. The line was as gooa a typo as could be expected. The majority of hilly stations were fenced on a give-and-ta.lce Jino. lie thought the clearing was a very good job. Gordon vv'iJford Bremgtfn, head-sheph-erd iv plaintiff's employ, said he hudsince been over the^ fence with the ■straining gear, but Ite-could not strain it out tighter m ;iuy place. PJaintiif, recalled, stated thai he also assisted m felling trees. Ho contended that it would bo a matter of impossi•biltiy at the present time to trace the stumps of trees he felled 14 months ago. tie reckoned there were more- than 25 trees over 2ft. Some of his neighbors wens paying £2 -««> per acre for felling.

JLMH' the defence Mr Coleman said he intended to call evidence as to the value of the clearing and labor. Counsel contended that tho method -of construction was f;uil|y, tho wires were not taut, and the ience itself was not stable. He would also bring evidence to show that the material was, inferior; on the grounds that there should have l been proper straining posts. There was an extreme possibility that when the bush was burned it would inevitably ! be destroyed to such an extent as to I ,be practically useless. TheNlefenue re- 1 lied on a written document which exhausted any verbal uriangemeuts. In the box Andrew Picken, defendant, said he met plaintiff oil January 16. Witness was accompanied 'by Frank Itobb. He (plaintiff) said he had good men available after the close of Shearing, and suggested the boundai-y ■fence be fixed up while the mcii were there. Witness told paintiff he was agreeable to have it done, but lie considered it was too late m t!he season to fell scrub, as he- would be unable to burn. Witness was drawn m the ballot in -February-.- In March he telephoned plaintii : , w-lio said he had not gone on with t'he fence, as he did not know whether the defendant would have left by the time it was done. Witness replied that he was glad the work was •not gone on with, as the. season had been too wet to get a burn. Plaintiff add. d that he would like to have the woi-k carried out the following season, and sent a letter to plaintiff enclosing a written agreement. He later sawj Roberts m town ; the latter said that the contract was quite satisfactory, but that the work could net be gone on with immediately. One point that was fully understood was that the fence should be erected on the boundary line. When he saw the fence had been proceeded with and it was too i late, he went home to consult the ' written- authority to see whether he could stop the work. He received a letter ai*d an account. Witness went out and inspected ■ tho fence, and traversed from the hill half w;iy down. He •was absolutely disgusted with tho job. The wires were not strained, and the fence was low m places. The original fenc© was on the hill, and the present fence was started two feet off the peg on liis side, aYidUhe. peg had been removed. Witness wrote to Mr Roberts and 1 received a reply, the matter subsequently getting into the solicitors' hands. It took fully .-.two hours for witness to get to the fence from h-s home. When witness. came to town, it was agreed that the parties should meet at the fence and try to,. come to ahagreement. This they failed to do. Witness was at the fence about a minute before plaintiff arrived.., JHe.jjaid : "You i know the height of a fence." Plaintiffreplied, "3ft. 9in, but you will not be particular to an inch.*' Witness replied that as plaintiff had placed the/ matter m legal hands it \.ould have to be a good; fence to satisfy him. Witness measured some of the posts, and they were three inches too short. Witness pointed out that the fence was off the boundary line. Plaintiff replied that tie could) see witness was after his good grass.. At the top of the hill plaintiif said : "The wires are all right, anyhow." Witness pulled about a foot of .wire with his hands. He also pointed out a large rata tree, which was liable to fall at any moment. Tliere was one of plaintiff's workmen, wtih him. Oil the way back plaintiff contended that ojie- could not get a satisfactory 3ft. 9in. fence on the boundary line. Witness also pointed 'Out that he had learned tltat Robb's boundary, fence was on his (Robb's) side of tho survey boundary. Plaintiff went down to see the peg, and expressed surprise at seeing 'the fence .so far out, and that the men did not mention it to him. Witness offered to erect Iwlf the boundaiy fence with eight wires if plaintiff would do like.wise with the other half. To put. the fence back on the survey boundary would cost about £35, as it would require new posts, the others being too short. Had the fence been placed on the boundary line it would lie safe from fire. There was no boggy patch, aa contended by plaintiff. The new fence was closer to his property oil an average of 3ft. from the postholes indicatnng the old line of fence. The new fence was not by any means straiglit, and the fence being zig-zag would cuuse it to fall flat if the wires were strained. The minimum height of the fence was about 2ft. 5in... while 3ft. to 3ft. 6in. was common. 'T/iie posts of the fence leaned uphill instead of being square on, and that tended to make the fence still lower. There were 126 yaw posts m the fence. Tliere were 661 bnttens m the fence, including a dozew of tie old ones. The fence as *it stood was by no means cattle-proof i It' eattie ■were to scratch themselves ' on the fence it would fall over. He snw two of his .neighbor's sheep go under the fence. 'There were three small creek? crossing the line. Tliere was a gap m the fence .at two of the creeks, and m the third the wire wa« just strained across the waterwny, instead of .living rails along to prevent sheep getting through when the creek was dry. Where the fences terminated at the creeks the wires were strained on trj ,t pungti-puncrst root m 'sin unsatisfactory manner. The other strainers, wen; also unstable. If the 'bush, was fired the totara and rimu posts were burned. The. danger would J;a imminent. m burning. Witness intended to take the fence down before lie started to burn., as 'wire 'tvfta top expensive m these times. At tho present time, if the fire destroyed it, lu> would